A REVIEW OF ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY (2015) 61 (PT. 3) NSCQR 1857 — PROPER PARTIES; THE POSITION OF A CROSS-APPELLANT WHO FAILS TO FILE A BRIEF AT THE SUPREME COURT; AND THE DIVISION IN APC AND PDP.

OLUWAKEMI S. ADEYEMI[1]

1.0. INTRODUCTION

The Supreme Court in this landmark decision held that a division in any branch (State, Local Government, etc) of a political party cannot justify an elected member of the House of Representatives (a fortiori the Senate and the House of Assembly) to defect without losing the privilege of his seat. The decision bothered on the interpretation to be accorded to Section 68(1)(g)[2] of the 1999 Constitution (as amended) which provides that: “A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if- being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected: Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.”

The facts of the case are really straight-forward. The Appellant was elected under the platform of the Labour Party into the House of Representatives as the Honourable Member representing Akure North/South Federal Constituency. During the tenure of his seat, he defected to the Action Congress of Nigeria on the basis that there was a division in the Ondo State Chapter of the Labour Party. He filed a suit via an Originating Summons against: The Ondo State House of Assembly; The Clerk, Ondo State House of Assembly; The Speaker, Ondo State House of Assembly; Factional Chairmen of Ondo State Labour Party; Factional Chairmen of Labour Party Akure North Local Government; Chairman, Labour Party Akure South Local Government; Ondo State Labour Party; Chairman, Labour Party Ward 9, Akure South Local Government; Alhaji Aminu Tambuwal (The Speaker of the House of Representatives); Barrister Dan Nwanyanwu (National Chairman, Labour Party). His claim was in the main praying that under Section 68(1)(g) of the Constitution, he is entitled to remain the Honourable Member representing Akure North/South Federal Constituency at the House of Representatives. The first three defendants filed a counter-claim praying that by virtue of the defection of the Appellant he ceases to be the representative of the said Federal Constituency at the House of Representatives. The Trial Federal High Court agreed with the Counter-Claim and dismissed the Claim of the Appellant then Plaintiff. The Court of Appeal also dismissed the Claim of the Appellant. This necessitated this further appeal to the Supreme Court.

2.0. DECISION OF THE COURT

The full bench[3] of the Supreme Court after a careful consideration of Section 68(1)(g) and Chaper VI, Part III(D)[4] of the 1999 Constitution (as amended), Section 80 of the Electoral Act 2010 (as amended) whose lead opinion was read by M D Muhammad JSC held that the division in a branch of a political party cannot justify a member of that branch who is a member of the House of Representative to keep occupying his seat if he defects to another political party. In the words[5] of M D Muhammad JSC after a review of the previous decisions of the Court on the same point[6], “The principles enunciated by this Court in the two cases, FEDECO v. Goni (supra) and AG Federation v. Abubakar (supra), is to the effect that only such factionalisation, fragmentation, splintering or ‘division’ that makes it impossible or impracticable for a political party to function as such will, by virtue of the proviso to Section 68(1)(g), justify a person’s defection to another party and the retention of his seat for the unexpired term in the house inspite of his defection. Otherwise, as rightly held by the courts below, the defector automatically loses his seat. In the instant case, the two courts are right that the Labour Party that has continued to function as a political party by meeting the conditions of associations by virtue of Sections 221 and 222 of the Constitution must necessarily meet, cannot be said to have been so factionalised, fragmented, split or divided to justify the defection of the appellant to another party and retention of his seat inspite of the defection. This remains the position of this Court on the issue.” The concurring opinion of Galadima JSC is quite poignant. The Law Lord observed that[7]: “Quite rightly, Section 222(a), (f) and (e) of the 1999 Constitution made no reference to the ‘ward’, ‘local government’, or ’state structure’. However, a calm reading of Section 68(1)(g) of the Constitution will show that no reference is made by the framers of the Constitution to ‘a state branch’, ward level or ‘unit level’ of a Political Party, when the framers of the Constitution repeatedly referred to ‘Political Party’ in that Section. If the framers of the Constitution had really intended that a ‘division’ within a ‘State branch’, ‘ward level’, ‘unit level’ of a Political Party, as suggested by the learned silk, (they) would have so expressly stated. Therefore contrary to the argument of the appellant at paragraph 29 of his brief, Section 222 (a), (e) and (f) which referred respectively to ‘National Officers’, ‘geographical area’ and ‘headquarters in the Federal Capital Territory’, is to support the argument that a national outlook of a Political Party is intended by the framers of the 1999 Constitution in construing Section 68(1)(g)…. “(1) Firstly, can a disagreement in a branch of a company be classified as a division in that company when the board of directors of the Company is still intact? (2) Secondly, can the local branch of a Company be wound up or merged with another Company?” He rightly answers the two questions in the negative. This analogical deduction settles the contest between the parties, effulgently and effectually too; for the nature of the division envisaged in the Section 68(1)(g) must be one that affects the total structure of a Political Party.”

3.0. WERE PROPER PARTIES[8] BEFORE THE COURT?

The locus classicus case of Madukolu v. Nkemdilim[9] laid down the principles guiding the existence or otherwise of jurisdiction in these words:

1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

2. The subject matter of the case is within its jurisdiction, and there are no feature in the case which prevents the court from exercising jurisdiction; and

3. The case comes before the court initiated by due process and upon fulfilment of any condition precedent to the exercise of Jurisdiction.

Okoro JSC in Rebold Industries Ltd V. Magreola[10] observed that: ‘Every appeal or suit filed before a court of law is based and anchored on its peculiar facts and the reliefs sought are not made in vacuum but relate to and derive from the raw facts of the case. The courts, in their task of determining the rights and obligations of parties are usually guided by the facts adduced before the court and the law applicable thereto. Before a party files a matter in court, he must possess what is called a cause of action which usually is against some person, persons or institutions. That is to say, a plaintiff must show by his pleadings that he has a cause of action maintainable in a court of law against the defendant. He cannot sue just anybody. It must be someone who has wronged him one way or other. You cannot sue someone who has not done you any wrong.’

What the cases sighted above emphasize is the need for proper parties to be before a Court before such a court can exercise jurisdiction. So, the question that falls to be determined is whether the proper parties were before the Supreme Court and a fortiori the trial Federal High Court?

For the Appellant (Plaintiff at the trial court), there can be no question that he was a proper party in relation to the reliefs he sought. He is (or perhaps was) the Honourable Member representing Akure North/South Federal Constituency who though elected under the platform of the Labour Party defected to the Action Congress of Nigeria.

What about the first three respondents/counter-claimants on record i.e. The Ondo State House of Assembly; The Clerk, Ondo State House of Assembly; The Speaker, Ondo State House of Assembly? Does the Constitution give them any role to play in declaring the seat of a member of the House of Representatives vacant (where such a member defects)? I do not think so. What interest(s) do these three have in whether or not the seat of an Honourable Member of the House of Representatives in one of the Federal Constituencies of Ondo State should be declared vacant? The purport of Nigeria’s federalism is to create legislative houses that are autonomous of each other at each level of the federation i.e the Natonal Assembly comprising of the Senate and the House of Representatives and the (Ondo) State House of Assembly. The latter house cannot under any guise claim to be interested in whether or not the seat of a member of the House of Representative should be declared vacant. What benefit will accrue to the Ondo State House of Assembly? What mischief will it be defending itself against? I do not think any benefit will accrue to the Ondo State House of Assembly or that any mischief will be carried out against it if it had not been joined as a party to this suit.

If it is agreed that the first three respondents/Counter-Claimants are not proper parties, it therefore follows that their Counter-Claim is out of place; they lack the locus standi to file the Counter-Claim. Thus, no court is entitled to grant them the reliefs they claimed. The learned justice Niki Tobi JCA (as he then was) aptly puts it this way in the case of The Owners of M.V. Baco Liner 3 v. Adeniji[11] that: “locus standi in my view is a forerunner or precursor to jurisdiction. Accordingly, where it is proved that a Plaintiff lacks locus standi to bring an action, the court will decline jurisdiction as it has none. A court of law has no jurisdiction to manufacture locus standi on a party and arrogate to itself jurisdiction. That is never done.”

It should however be noted that none of the parties brought the possible lack of interest of the first three Respondents to the attention of the Courts that heard this matter. If this had been done, the Court could have under Order 8 Rule 12(2) of its Rules struck out the names of the first three Respondents and their Respondents’ brief from its records.

Flowing from the above, the main claims and counter-claims in this suit were one and the same (just opposite); the grant of one will mean the refusal of the other. The refusal of the Claim regardless of the absence of a counter-claim would have meant that the Appellant would have had to vacate his seat.

Inspite of the foregoing, however, the proper defendants that should have been sued in this suit are the Independent National Electoral Commission (the electoral umpire); the Speaker of the House of Representatives (who was the 11th Respondents); Labour Party both National and at the State level (represented by the 4th-10th and 12th Respondents). Overall, it will be seen that apart from the slip in joining the first three Respondents as parties, there were proper parties before the Supreme Court.

4.0. WHAT HAPPENS WHERE A CROSS-APPELLANT FAILS TO FILE A BRIEF AT THE SUPREME COURT?

At page 1886 of the Report, M D Muhammad JSC observed that: “It is significant to acknowledge the fact that the 5th and 7th Respondents have also cross-appealed against the lower court’s judgement by their Notice containing three grounds dated and filed on 19th September, 2014. Notwithstanding the fact that the 5th and 7th respondents/cross-appellants did not file any brief of argument in respect of either the main appeal or their Cross-Appeal, the court granted them leave pursuant to Order 6 Rule 9 of its rules to advance oral arguments regarding the Cross-Appeal.”

Does Order 6 Rule 9 of the Supreme Court Rules envisage a situation like this? The Rule provides that: “If an appellant fails to file and serve his brief within the time provided for in rule 5 of these Rules, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be struck out for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument except by leave of the Court.” It is not in doubt that a cross-appeal is tantamount to an appeal[12]. So where as in this case, a cross-appellant fails to file his brief of argument, the Court is expected to strike out his cross-appeal upon the application of cross-respondent(s) for want of prosecution and not to allow him to be heard on oral argument.

It is admitted that nothing on the record showed that the Cross-Respondents applied that the Cross-Appeal should be struck out but this writer submits that it behoved on the Learned Law Lords to have directed the mind of counsel on the possible restriction that the cited rule places on their power and request that counsel address them on this restriction. The Supreme Court’s power to grant leave to the Cross-Appellants to address it orally in the absence of their Cross-Appellant’s brief should have been limited to addressing the court as Respondents[13] not as a Cross-Appellant.

Credence should however be given to Order 10 Rule 1(1 & 2) of the Supreme Court Rules which provides: ‘The Court may, where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof. Where there is such waiver of compliance with the Rules, the Court may, in such manner as it thinks right, direct the appellant or the respondent, as the case may be, to remedy such non-compliance or not but may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.’

This Rule and not Order 6 Rule 9 is the appropriate saving provision under which the Supreme Court is entitled to hear the Cross-Appellants on their Cross-Appeal.

5.0. CAN THE SEATS OF AKPABIO AND THE FORMER APC SENATORS/HONOURABLE MEMBERS OF THE HOUSE OF REPRESENTATIVES BE DECLARED VACANT? WHO CAN DECLARE THE SEATS VACANT?

In the light of the foregoing particularly Paragraph 2.0, can the seats of Senator Godswill Akpabio and the former All Progressive Congress (simply APC) Senators and Honourable Members of the House of Representatives who defected to the People’s Democratic Party(PDP) and other parties be declared vacant by virtue of Section 68(1)(g)?

I have distinguished between Senator Akpabio and the defecting members of the APC because of the key term: division. It cannot be in doubt that before Senator Godswill Akpabio cross-carpeted into the APC from the PDP having been elected as the Senator representing Akwa-Ibom North-West Senatorial District under the platform of the PDP, there was no division in the PDP. Thus, his seat can be declared vacant.

Was there a division in the APC before the defection? Perhaps, there was. There is a splinter group known as the R-APC (Reformed APC); established before the defections started. Is this division strong enough to ‘make(s) it impossible or impracticable for a political party to function as such’? Clearly, the R-APC has a recognised national chairman, Alhaji Buba Galadima. Whether or not the fact that the R-APC has a national chairman and a national structure can justify the former APC Senators and Representatives keeping their seats despite their defection is a matter of construction. Mr Gbola Oba, a journalist and a commentator on the radio program City Press on City 105.1 FM is of the opinion that these persons cannot keep their seat because of the fact of the name of the group R-APC which is distinct from APC. Raymond Nkannebe is of the view that the division in the APC is not in the same level as in FEDECO v. Goni.

I will rather follow the line of argument that says that R-APC is a name that recognises that the members of the group are members of the APC but that they do not agree with some or all of the decisions and/or leadership of the APC. Thus, the R-APC should be considered a division.

Who can declare the seats vacant? The wordings of Section 68(1) of the Constitution (as amended) suggests that when any of the conditions defined by the section occurs, the member would as a matter of honour vacate his seat. What happens where the legislator refuses to vacate his seat after like in this case, a defection? Section 68(2) provides that: “The President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member.” Thus, it follows automatically that the President of the Senate in the case of a defecting Senator and the Speaker of the House of Representatives in relation to Honourable Members are the constituted authority that can declare such seats vacant.

6.0. CONCLUSION

In conclusion, I want to raise a poser in the light of the facts of the case under review: if it is agreed that there was a division within the Ondo State Chapter of the Labour Party, can’t a member of that chapter who is holding the office of an House of Representatives defect while still enjoying the benefit of the office (especially in the light of the opinion of the Supreme Court in FEDECO v. Goni[14] that: ‘A split or division could arise without any fault of the members of a political party resulting in a member rightly or wrongly, finding himself in a minority group which may not be big enough, or strong enough to satisfy the recognition, as a separate political party, of the Federal Electoral Commission. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost. Such a situation is entirely different from the fraudulent and malevolent practice of cross-carpeting politicians of yester years who, for financial consideration or otherwise, crossed from one political party to another, without qualms and without conscience. Such a practice had to be discouraged by the framers of our constitution if political public morality of our country was to be preserved.)?’ I venture to think that such a member should be justified in defecting. However, this will not justify a member of another State chapter to defect. It should however be noted that the present position of the law says the member cannot defect and still hold the office.

Furthermore, inspite of the observations that have been made in the paragraphs above, it is important to re-echo the dictum of Iguh JSC in Oladejo Adewuyi v. Fadeke Akanni & 10 Ors[15] that: ‘In this regard, it must be emphasized that it is not every error of law that is committed by a trial or Appellate Court that justifies the reversal of judgement. An appellant to secure the reversal of a judgement, must further establish that the error of law complained of did in fact occasioned a miscarriage of justice and/or substantially affected the result of the decision…. An error in law which has occasioned no miscarriage of justice is immaterial and may not affect the final decision of a court. this is because what an Appeal Court has to decide is whether the decision of the trial Judge was right and not whether his reasons were, and a misdirection that does not occasion injustice is immaterial.’ The ‘errors’ observed above did not in any way affect the final decision of the Supreme Court. They may have bearing on the reasons definitely not the decisions.

The author publishes this article for educational purposes only, not to provide specific legal advice. By using this article, you indicate that you understand there is no attorney-client relationship between you and the author. This article should not be used as a substitute for obtaining legal advice from a Legal Practitioner.

[1] The writer is an Associate at P O Bajowa Chambers. He may be contacted via aolulaw17@gmail.com.

[2] See Section 109(1)(g) of the Constitution (as amended) in relation to the State House of Assembly.

[3] That is seven members of the Court. See Section 234 of the 1999 Constitution (as amended)

[4] These provisions guide the running of political parties in Nigeria.

[5] Page 1905 of the Report.

[6] FEDECO v. Goni (1983) 14 NSCC 481; Abubakar v. Attorney General of the Federation (2007) 10 NWLR (Pt. 1041) 178.

[7] Pages 1943, 1945 of the Report.

[8] Order 9 of the Federal High Court Civil Procedure Rules 2009 is the regulating rule of the Federal High Court on Parties

[9] All NLR 1 (1961) 581 at 589

[10] (2015) 62 NSCQR 427 at 451–452

[11] (1993) 2 NWLR (Pt. 274) 195 at 202

[12] See M M Stanley-Idum and J A Agaba’s Civil Litigation in Nigeria at pages 750–751.

[13] At the Court of Appeal, the briefs filed by the 5th and 7th Respondents were discountenanced by the Court because it challenged the decision of the trial Court without filing a Notice of Cross-Appeal. See Abegunde v. Ondo State House of Assembly (2014) LPELR-23683 (CA) at 58–59 per Mshelia JCA

[14] 1983) 14 NSCC 481 referred to at pages 1903–1904 of the report.

[15] (1993) 9 NWLR (Pt. 316) 182 at 205